State v. Henry.

• Decision Date: 12 September 1933
• Docket Number: No. 3908.,3908.
• Citation: 37 N.M. 536,25 P.2d 204
• Parties: STATEv.HENRY.
• Court: New Mexico Supreme Court

37 N.M. 536

25 P.2d 204

STATE

v.HENRY.

No. 3908.

Supreme Court of New Mexico.

Sept. 12, 1933.

Appeal from District Court, Bernalillo County; Milton J. Helmick, Judge.

Proceeding by the State against H. E. Henry for violation of a statute prohibiting labor of male employees in mercantile establishments more than eight hours in a day. From an order quashing the information, the State appeals.

Affirmed, and cause remanded.

Statute prohibiting labor of male employees in mercantile establishment more than eight hours a day held void as depriving employer and employee of liberty without due process, where statute did not appear to have been enacted as health or emergency measure. Laws 1933, c. 149; U.S.C.A.Const. Amend. 14; Const.N.M. art. 2, § 18.

E. K. Neumann, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

John F. Simms, of Albuquerque, for appellee.

WATSON, Chief Justice.

This is an appeal by the state from an order quashing an information which charged that appellant, “being the *** proprietor of a *** mercantile establishment, to-wit, a drug store, did *** cause a male employee, *** a registered pharmacist, to work and labor in said mercantile establishment for more than eight hours in a certain twenty-four hour day, *** the said work and labor *** not having been performed in an emergency case. ***”

The information is founded on Laws 1933, c. 149, which prohibits labor of male employees in mercantile establishments more than eight hours in a day or forty-eight hours in a week of six days.

The motion attacks the statute as repugnant to the due process clause of State and Federal Constitutions, in that it deprives both employer and employee of liberty of contract, and deprives the employee of his property right in his own labor. It further attacks it as violative of the equal protection clause of the Constitutions, in that the selection of mercantile establishments for such regulation is an arbitrary and unreasonable classification, not referable to the health, morals, or general welfare of the public or of the employers or employees thus restricted.

The learned trial judge, in sustaining the motion, rendered this brief opinion: “Ignoring the defects in grammar and language, we find the statute provides an eight hour day for ‘mercantile establishments'. The selection of mercantile establishments for regulation seems to be an arbitrary one of the sort which has been held invalid by all of our courts from the Supreme Court of the United States down. Counsel have not been able to find any case sustaining such a classification, and I believe none exists. Labor in a mercantile establishment has no such relation to the public health, safety, morals, or general welfare as to set it apart from other occupations for the purpose of regulation. It is hard to see why hours of labor should be regulated in mercantile establishments and not in factories, laundries, foundries, dairies, bakeries, building trades, garages, and the like. Had the legislature, in keeping with the social trend of the times, made a sweeping enactment of an eight hour day for all wage earners in the state, this court would have viewed it with great sympathy, but there appears no ground for ascribing validity to the present act.”

Able counsel for appellee thus discusses the workings of the statute: “It will be noticed at the outset that this statute deals with male employees in mercantile establishments only. It makes no distinction as to the kinds of labor they perform. They may be bookkeepers, stenographers, clerks, drivers of delivery wagons, traveling salesmen or what not. The test sought to be applied is not what they do but who they work for. The proprietor of the business is not prohibited from working any number of hours he may choose. An employee who does exactly similar work for an employer who does not run a mercantile establishment is not prohibited from working any number of hours he may choose. A bookkeeper in a bank can work until midnight to balance accounts before the first of the month and be within the law; his brother who keeps books for a merchant next door will get his employer arrested if he does the same thing. Each may be working in surroundings exactly similar as to comfort, health and safety.”

Broadly, the question is whether the statute is a legitimate exercise of police power, or whether it violates rights which the Constitution has protected as against legislative deprivation.

Appellant, the state, interprets the opinion as a holding “that the classification by the legislature was arbitrary and therefore violated the law,” and says: “We assume the court had in mind the question of unwarranted discrimination.” Inquiry is then directed to the question whether the act denies the equal protection of the laws to employers and employees of mercantile establishments; the legislative power to make reasonable classifications is invoked; and it is contended that the constitutional guaranty is not violated unless protection afforded to one is denied to another in like circumstances. This matter of classification, it is said, is primarily for the Legislature; the judicial function being merely to inquire whether it is clearly unreasonable, and to resolve all doubt in favor of the statute.

These general principles we do not question, nor the authorities cited in support of them. If the statute can be brought within the police power, it may be, or it may not be, that it would withstand the objection of discrimination or class legislation. That question we pass. Another precedes it. Is the act within the police power?

“Due process” is the test. It is dual; that of the Federal Constitution (Amendment 14), a limitation upon state powers; that of our own Bill of Rights (article 2, § 18), the people's limitation upon legislative power. Of the former, first.

The leading case cited by appellee is Lochner v. New York, 198 U. S. 45, 25 S. Ct. 539, 547, 49 L. Ed. 937, 3 Ann. Cas. 1133. There a state statute limiting daily labor in bakeries to ten hours was held to violate due process. Four of the nine justices dissented. But all, except perhaps Mr. Justice Holmes, agreed in principle; the difference being one of fact, whether the nature of that employment was such that the law could be sustained as a health measure. This appears not only on the face of the opinions themselves, but from a later pronouncement by Mr. Justice Harlan, one of the dissenters, then speaking for the court. Adair v. U. S., 208 U. S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764.

Our statute cannot be distinguished from the New York enactment to the legal advantage of the former. If this were the latest holding, we might well rest decision on such high authority. But we are reminded that law is a “progressive science,” particularly in cases of this character. We shall not assume, in considering “general welfare” as the basis of police power, that 1905 is 1933.

The Lochner Case has been frequently distinguished. By statutes which have successfully resisted attack, numerous classes have suffered some impairment of liberty of contract, because, considering age, sex, the rigors or hazards of employment, or other matters, it was possible to relate the restriction to health, safety, morals, or other recognized object of legislative protection. As a precedent, it would now be an unsafe guide. But its importance as a leading case lies in the principles invoked, not in the particular application of them.

Not always, perhaps never, has the soundness of those principles been unanimously conceded in our highest court. Certain it is that there have always been jurists and scholars to challenge them. That they have so far survived can hardly be questioned. Many may contend that they should be overthrown. Few will be heard to claim that they have been.

The fundamental principles are these:

[1] First. “Liberty” embraces a man's right to contract as he will or can regarding his hours of employment. He, not the government, is to determine the matter. To this extent individualism is in the Constitution. It may be that Mr. Justice Holmes was historically and scientifically right in opining that “a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.” Lochner v. New York, supra. Rightly or wrongly, this intent and result are in the Constitution, according to judicial decision.

[2] Second. “Due process,” by which only the individual may be deprived of his liberty, does not have regard merely to enforcement of the law, but searches also the authority for making the law. An historical and scientific mistake may have been made in deviating from the more familiar idea that “due process” is matter of procedure only. Corwin, “The Supreme Court and the Fourteenth Amendment,” 7 Mich. Law Rev. 643. Nevertheless, by judicial decision, the first and fundamental step in the due process or procedure of depriving the individual of liberty is the enactment of a statute within legislative competency.

[3][4] Third. The guaranty is not merely directory to the Legislature, binding its conscience only; a political right. It constitutes a legal right, assertable in the courts, and to be protected and preserved unless the contrary right asserted be superior. It is perhaps to be regretted that the early warning of Mr. Justice Miller against “a perpetual censorship of state legislation” (Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394) has not been heeded. There may be force in the suggestion that an undue sensitiveness of the courts to constitutional right tends to lessen that of the Legislature; the latter feeling that it may safely and rightly relieve itself of, and throw on the former, the responsibility, often the odium, of overruling the will of the majority, or the will of the organized and active minority. Learned Hand, “Due Process of Law...